End User License Agreement for Cogent and Skkynet Software

IMPORTANT – READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Cogent Real-Time Systems Inc. (“Cogent”) of 2233 Argentia Road, Suite 306, Mississauga, ON L5N 2X7, Canada (Tel: 1-888-628-2028 or +1-905-702-7851, Fax: 1-289-344-0469), from whom you acquired the Cogent or Skkynet software product(s) (“SOFTWARE PRODUCT” or “SOFTWARE”), either directly from Cogent, indirectly from Skkynet Inc. or Skkynet Corp. (collectively, “Skkynet”), or through one of Cogent’s authorized resellers.

The SOFTWARE PRODUCT includes computer software, any associated media, any printed materials, and any “online” or electronic documentation. By installing, copying or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree with the terms of this EULA, Cogent is unwilling to license the SOFTWARE PRODUCT to you. In such event, you may not use or copy the SOFTWARE PRODUCT, and you should promptly contact Cogent for instructions on return of the unused product(s) for a refund.

SOFTWARE PRODUCT LICENSE

The SOFTWARE PRODUCT is protected by copyright laws and copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold.

TABLE OF CONTENTS

  1. EVALUATION USE
  2. COMMERCIAL USE
  3. GRANT OF LICENSE
  4. WARRANTY
  5. LIMITATIONS
  6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
  7. UPGRADES
  8. COPYRIGHT
  9. PRODUCT SUPPORT
  10. RESTRICTED RIGHTS
  11. GOVERNING LAW

1. EVALUATION USE

This software is distributed as “Free for Evaluation,” and with a per-use royalty for Commercial Use, where “Free for Evaluation” means to evaluate Cogent or Skkynet’s software and to do exploratory development and “proof of concept” prototyping of software applications, and where “Free for Evaluation” specifically excludes without limitation.

  1. use of the SOFTWARE PRODUCT in a business setting or in support of a business activity;
  2. development of a system to be used for commercial gain, whether to be sold or to be used within a company, partnership, organisation or entity that transacts commercial business;
  3. the use of the SOFTWARE PRODUCT in a commercial business for any reason other than exploratory development and “proof of concept” prototyping, even if the SOFTWARE PRODUCT is not incorporated into an application or product to be sold;
  4. the use of the SOFTWARE PRODUCT to enable the use of another application that was developed with the SOFTWARE PRODUCT;
  5. inclusion of the SOFTWARE PRODUCT in a collection of software, whether that collection is sold, given away, or made part of a larger collection; and
  6. inclusion of the SOFTWARE PRODUCT in another product, whether or not that other product is sold, given away, or made part of a larger product.

2. COMMERCIAL USE

COMMERCIAL USE is any use that is not specifically defined in this license as EVALUATION USE.

3. GRANT OF LICENSE

This EULA covers both COMMERCIAL and EVALUATION USE of the SOFTWARE PRODUCT. Either Section 3.a. or 3.b. will apply to you, depending on your actual use of the SOFTWARE PRODUCT. If you have not obtained a license for the SOFTWARE PRODUCT from Cogent, Skkynet or an authorized reseller, then you may not use the product for COMMERCIAL USE.

a. GRANT OF LICENSE (EVALUATION USE)

This EULA grants you the following non-exclusive rights when used for EVALUATION purposes:

  1. Software: You may use the SOFTWARE PRODUCT on any number of computers, either stand-alone, or on a network, so long as every use of the SOFTWARE PRODUCT is for EVALUATION USE. You may reproduce the SOFTWARE PRODUCT, but only as reasonably required to install and use it in accordance with this LICENSE or to follow your normal back-up practices.
  2. Subject to the license expressly granted above, you obtain no right, title or interest in or to the SOFTWARE PRODUCT or related documentation, including but not limited to any copyright, patent, trade secret or other proprietary rights therein. All whole or partial copies of the SOFTWARE PRODUCT remain property of Cogent and/or Skkynet and will be considered part of the SOFTWARE PRODUCT for the purpose of this EULA.
  3. Derivative works: Subject to the license grant back in Section 3.a.4., you shall own any derivative works you create and that integrates with the SOFTWARE PRODUCT and/or your software product (“Modification(s)”) subject to Cogent and/or Skkynet’s ownership of the underlying SOFTWARE PRODUCT and all intellectual property rights therein.
  4. License grant back: You hereby grant to Cogent and its licensors and/or affiliates a worldwide, non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers of sublicensees), assignable, transferable, royalty-free and fully paid-up right and license to the Modification(s) created by you or on your behalf so that Cogent and Skkynet may copy, modify, create derivative works thereof to use, have used, import, make, have made, sell, offer to sell, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors) such derivative work(s) on a stand-alone basis or as incorporated into the SOFTWARE PRODUCT or other related technologies. For the sake of clarity, Cogent and Skkynet are not prohibited or otherwise restricted from independently developing new features or functionality with respect to the SOFTWARE PRODUCT.
  5. Unless expressly permitted under this EULA or otherwise by Cogent or Skkynet, you will not:
    1. use, reproduce, modify, adapt, translate or otherwise transmit the SOFTWARE PRODUCT or related components, in whole or in part;
    2. rent, lease, license, transfer or otherwise provide access to third parties for commercial gain to the SOFTWARE PRODUCT or related components or to the data stored in or managed by the SOFTWARE PRODUCT;
    3. alter, remove or cover proprietary notices in or on the SOFTWARE PRODUCT, related documentation or storage media;
    4. export the SOFTWARE PRODUCT from the country in which it was provided to you by Cogent, Skkynet or an authorized reseller;
    5. use a multi-processor version of the SOFTWARE PRODUCT in a network larger than that for which you have paid the corresponding multi-processor fees;
    6. decompile, disassemble or otherwise attempt or assist others to reverse engineer the SOFTWARE PRODUCT;
    7. circumvent, disable or otherwise render ineffective any demonstration time-outs, locks on functionality or any other restrictions on use in the SOFTWARE PRODUCT;
    8. circumvent, disable or otherwise render ineffective any license verification mechanisms used by the SOFTWARE PRODUCT;
    9. use the SOFTWARE PRODUCT in any application that is intended to create or could, in the event of malfunction or failure, cause serious personal injury or property damage; or
    10. make use of the SOFTWARE PRODUCT for commercial gain, whether directly, indirectly or incidentally.

b. GRANT OF LICENSE (COMMERCIAL USE)

Subject to termination under Section 3.a. of a Sales Agreement, this EULA grants you the following non-exclusive rights when used for COMMERCIAL purposes:

  1. Software: Except as otherwise set out in an accompanying Cogent or Skkynet Sales Agreement or as notified in writing by Cogent or Skkynet through an authorized reseller, you may use the SOFTWARE PRODUCT on one computer, or if the SOFTWARE PRODUCT is a multi-processor version – on one node of a network, either: (i) as a development system for the purpose of creating value-added software applications in accordance with related Cogent documentation; or (ii) as a single run-time copy for use as an integral part of such an application. This includes reproduction and configuration of the SOFTWARE PRODUCT, but only as reasonably required to install and use it in association with your licensed processor or to follow your normal back-up practices. One license may be validly used for one executing instance of the SOFTWARE PRODUCT on a computer. Each additional executing instance of the SOFTWARE PRODUCT on the same computer requires an additional license.
  2. Storage/network use: You may also store or install a copy of the SOFTWARE PRODUCT on one computer to allow your other computers to use the SOFTWARE PRODUCT over an internal network, and distribute the SOFTWARE PRODUCT to your other computers over an internal network. However, you must acquire and dedicate a license for the SOFTWARE PRODUCT for each computer on which the SOFTWARE PRODUCT is used or to which it is distributed. A license for the SOFTWARE PRODUCT may not be shared or used concurrently on different computers, nor may one license be used for more than one executing instance of the SOFTWARE PRODUCT on the same computer.
  3. Network/web/Internet/cloud use: Except as otherwise set out in an accompanying Cogent or Skkynet Sales Agreement, you may: (a) only use the SOFTWARE PRODUCT internally in your company, partnership, organisation, or commercial entity; (b) not further resell or allow the exploitation of the SOFTWARE PRODUCT whether directly or indirectly, such as through access to the data stored in or managed by the SOFTWARE PRODUCT to multiple users. For the avoidance of doubt and without restriction, this EULA does not provide you the right or license to set up commercial services that are network-based, web-based, internet-based, or cloud-based, whether internal, external, public or private, using the SOFTWARE PRODUCT.
  4. Derivative works: Subject to the license grant back in Section 3.b.v., you shall own any derivative works you create and that integrates with the SOFTWARE PRODUCT and/or your software product (“Modification(s)”) subject to Cogent and/or Skkynet’s ownership of the underlying SOFTWARE PRODUCT and all intellectual property rights therein.
  5. License grant back: Unless otherwise set out in an accompanying Cogent or Skkynet Sales Agreement, you hereby grant to Cogent and its licensors and/or affiliates a worldwide, non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers of sublicensees), assignable, transferable, royalty-free and fully paid-up right and license to the Modification(s) created by you or on your behalf so that Cogent and Skkynet may copy, modify, create derivative works thereof to use, have used, import, make, have made, sell, offer to sell, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors) such derivative work(s) on a stand-alone basis or as incorporated into the SOFTWARE PRODUCT or other related technologies. For the sake of clarity, Cogent and Skkynet are not prohibited or otherwise restricted from independently developing new features or functionality with respect to the SOFTWARE PRODUCT.
  6. Subject to the license expressly granted above, you obtain no right, title or interest in or to the SOFTWARE PRODUCT or related documentation, including but not limited to any copyright, patent, trade secret or other proprietary rights therein. All whole or partial copies of the SOFTWARE PRODUCT remain property of Cogent and/or Skkynet and will be considered part of the SOFTWARE PRODUCT for the purpose of this EULA.
  7. Unless expressly permitted under this EULA or otherwise by Cogent or Skkynet, you will not:
    1. use, reproduce, modify, adapt, translate or otherwise transmit the SOFTWARE PRODUCT or related components, in whole or in part;
    2. rent, lease, license, transfer or otherwise provide access to third parties for commercial gain to the SOFTWARE PRODUCT or related components or to the data stored in or managed by the SOFTWARE PRODUCT;
    3. alter, remove or cover proprietary notices in or on the SOFTWARE PRODUCT, related documentation or storage media;
    4. export the SOFTWARE PRODUCT from the country in which it was provided to you by Cogent, Skkynet or an authorized reseller;
    5. use a multi-processor version of the SOFTWARE PRODUCT in a network larger than that for which you have paid the corresponding multi-processor fees;
    6. decompile, disassemble or otherwise attempt or assist others to reverse engineer the SOFTWARE PRODUCT;
    7. circumvent, disable or otherwise render ineffective any demonstration time-outs, locks on functionality or any other restrictions on use in the SOFTWARE PRODUCT;
    8. circumvent, disable or otherwise render ineffective any license verification mechanisms used by the SOFTWARE PRODUCT; or
    9. use the SOFTWARE PRODUCT in any application that is intended to create or could, in the event of malfunction or failure, cause serious personal injury or property damage.

c. RESERVATION OF RIGHTS

All rights not expressly licensed to you under this EULA herein are reserved to Cogent or its licensors.

4. WARRANTY

  1. Cogent and/or Skkynet cannot warrant that the SOFTWARE PRODUCT will function in accordance with related documentation in every combination of hardware platform, software environment and SOFTWARE PRODUCT configuration. You acknowledge that software bugs are likely to be identified when the SOFTWARE PRODUCT is used in your particular application. You therefore accept the responsibility of satisfying yourself that the SOFTWARE PRODUCT is suitable for your intended use. This includes conducting exhaustive testing of your application prior to its initial release and prior to the release of any related hardware or software modifications or enhancements.
  2. Subject to documentation errors, Cogent and/or Skkynet warrants to you for a period of ninety (90) days from acceptance of this EULA (as provided above, or as provided in an accompanying Cogent or Skkynet Sales Agreement) that the SOFTWARE PRODUCT as delivered by Cogent is capable of performing the functions described in related Cogent user documentation when used on appropriate hardware. This warranty does not apply to EVALUATION USE of SOFTWARE PRODUCTS, which is provided to you “as is” without warranty of any kind, whether express, implied, statutory, or otherwise. Cogent, Skkynet and Their Representatives (as defined in Section 5) bear no liability for any damages resulting from EVALUATION USE. Cogent and/or Skkynet also warrants that any enclosed disk(s) will be free from defects in material and workmanship under normal use for a period of ninety (90) days from acceptance of this EULA. Cogent and/or Skkynet are not responsible or disk defects that result from accident or abuse. Your sole remedy for any breach of warranty will be either to: (i) terminate this EULA and receive a refund of the amount paid to Cogent or Skkynet for the affected SOFTWARE PRODUCTS, or to the reseller (if the SOFTWARE PRODUCTS are sold to you by an authorized reseller) for the SOFTWARE PRODUCT, or (ii) to receive a replacement disk; provided that, if you obtained the SOFTWARE PRODUCT from a Cogent or Skkynet authorized reseller, you will direct all warranty questions or concerns, including a request for a refund, to the Cogent or Skkynet authorized reseller (see also Section 9 below) and the authorized reseller may provide you with technical support.

5. LIMITATIONS

  1. Except as expressly warranted above, the SOFTWARE PRODUCT, any related documentation and disks are provided “as is” without other warranties or conditions of any kind, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement. You assume the entire risk as to the results and performance of the SOFTWARE PRODUCT. Nothing stated in this EULA will imply that the operation of the SOFTWARE PRODUCT will be uninterrupted or error free or that any errors will be corrected. Other written or oral statements by Cogent, Skkynet, its representatives or others do not constitute warranties or conditions of Cogent and/or Skkynet.
  2. In no event will Cogent or Skkynet (or their officers, employees, suppliers, distributors, or licensors: collectively “Their Representatives”) be liable to you for any indirect, incidental, special or consequential damages whatsoever, including but not limited to loss of revenue, lost or damaged data or other commercial or economic loss, arising out of any breach of this EULA, any use or inability to use the SOFTWARE PRODUCT or any claim made by a third party, even if Cogent or Skkynet (or Their Representatives) have been advised of the possibility of such damage or claim. In no event will the aggregate liability of Cogent or Skkynet (or that of Their Representatives) for any damages or claim, whether in contract, tort or otherwise, exceed the amount paid by you for the SOFTWARE PRODUCT.
  3. These limitations shall apply whether or not the alleged breach or default is a breach of a fundamental condition or term, or a fundamental breach. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, or certain limitations of implied warranties. Therefore the above limitation may not apply to you.

6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS

  1. Separation of components. The SOFTWARE PRODUCT is licensed as a single product. Its component parts may not be separated for use on more than one computer.
  2. Termination. Without prejudice to any other rights, and subject to any accompanying Cogent or Skkynet Sales Agreement, either Cogent or Skkynet may terminate this EULA if you fail to comply with the terms and conditions of this EULA and any rights that you may have to use the SOFTWARE PRODUCT will immediately terminate. In such an event, you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts. Sections 5 and 11 shall survive termination of this EULA.

7. UPGRADES

If the SOFTWARE PRODUCT is an upgrade from another product, whether from Cogent, Skkynet or another supplier, you may use or transfer the SOFTWARE PRODUCT only in conjunction with that upgrade product, unless you destroy the upgraded product. If the SOFTWARE PRODUCT is an upgrade of a Cogent or Skkynet product, you now may use that upgraded product only in accordance with this EULA. If the SOFTWARE PRODUCT is an upgrade of a component of a package of software programs which you licensed as a single product, the SOFTWARE PRODUCT may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.

8. COPYRIGHT

All title and copyrights in and to the SOFTWARE PRODUCT (including but not limited to any images, photographs, animations, video, audio, music, text and “applets,” incorporated into the SOFTWARE PRODUCT), any accompanying printed material, and any copies of the SOFTWARE PRODUCT, are owned by Cogent, Skkynet or its suppliers. You may not copy the printed materials accompanying the SOFTWARE PRODUCT. All rights not specifically granted under this EULA are reserved by Cogent and Skkynet.

9. PRODUCT SUPPORT

Cogent and Skkynet have no obligation under this EULA to provide maintenance, support or training.

10. RESTRICTED RIGHTS

Use, duplication, or disclosure by the U.S. Government may be subject to restrictions as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as appropriate. Manufacturer is Cogent Real-Time Systems Inc., 2233 Argentia Road, Suite 306, Mississauga, ON L5N 2X7, Canada.

11. GOVERNING LAW

Except as otherwise set out in an accompanying Cogent or Skkynet Sales Agreement, this Software License Agreement is governed by the laws of the Province of Ontario, Canada, and you irrevocably attorn to the jurisdiction of the courts of the Province of Ontario and agree to commence any litigation that may arise hereunder in the courts located in the Judicial District of Peel, Province of Ontario.